on writ of certiorari to the united states court
of appeals for the fifth circuit

Nothing could be more contrary to contemporary standards of decency, see Ford v. Wainwright, 477 U.S. 399,
406 (1986), or more shocking to the conscience, see Rochin
v. California, 342 U.S. 165, 172 (1952), than to execute
a person who is actually innocent.

I therefore must disagree with the long and general
discussion that precedes the Court's disposition of this
case. See ante, at 6-26. That discussion, of course, is
dictum because the Court assumes, "for the sake of
argument in deciding this case, that in a capital case a
truly persuasive demonstration of `actual innocence' made
after trial would render the execution of a defendant
unconstitutional." Ante, at 26. Without articulating the
standard it is applying, however, the Court then decides
that this petitioner has not made a sufficiently persuasive
case. Because I believe that in the first instance the
District Court should decide whether petitioner is entitled
to a hearing and whether he is entitled to relief on the
merits of his claim, I would reverse the order of the Court
of Appeals and remand this case for further proceedings
in the District Court.

The Court's enumeration, ante, at 7, of the constitu tional rights of criminal defendants surely is entirely
beside the point. These protections sometimes fail.
[n.1]
We
really are being asked to decide whether the Constitution
forbids the execution of a person who has been validly
convicted and sentenced but who, nonetheless, can prove
his innocence with newly discovered evidence. Despite the
State of Texas' astonishing protestation to the contrary,
see Tr. of Oral Arg. 37, I do not see how the answer can
be anything but "yes."

The Eighth Amendment prohibits "cruel and unusual
punishments." This proscription is not static but rather
reflects evolving standards of decency. Ford v. Wainwright, 477 U. S., at 406; Gregg v. Georgia, 428 U.S. 153,
171 (1976) (opinion of Stewart, Powell, and Stevens, JJ.);
Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion); Weems v. United States, 217 U.S. 349, 373 (1910).
I think it is crystal clear that the execution of an innocent
person is "at odds with contemporary standards of fairness
and decency." Spaziano v. Florida, 468 U.S. 447, 465
(1984). Indeed, it is at odds with any standard of decencythat I can imagine.

This Court has ruled that punishment is excessive and
unconstitutional if it is "nothing more than the purposeless and needless imposition of pain and suffering," or if
it is "grossly out of proportion to the severity of the
crime." Coker v. Georgia, 433 U.S. 584, 592 (1977)
(plurality opinion); Gregg v. Georgia, 428 U. S., at 173
(opinion of Stewart, Powell, and Stevens, JJ.). It has
held that death is an excessive punishment for rape,
Coker v. Georgia, 433 U. S., at 592, and for mere participation in a robbery during which a killing takes place.
Enmund v. Florida, 458 U.S. 782, 797 (1982). If it is
violative of the Eighth Amendment to execute someone
who is guilty of those crimes, then it plainly is violative
of the Eighth Amendment to execute a person who is
actually innocent. Executing an innocent person epito mizes "the purposeless and needless imposition of pain
and suffering." Coker v. Georgia, 433 U. S., at 592.
[n.2]

The protection of the Eighth Amendment does not end
once a defendant has been validly convicted and sentenced. In Johnson v. Mississippi, 486 U.S. 578 (1988),
the petitioner had been convicted of murder and sentenced
to death on the basis of three aggravating circumstances.
One of those circumstances was that he previously had
been convicted of a violent felony in the State of NewYork. After Johnson had been sentenced to death, the
New York Court of Appeals reversed his prior conviction.
Although there was no question that the prior conviction
was valid at the time of Johnson's sentencing, this Court
held that the Eighth Amendment required review of the
sentence because "the jury was allowed to consider evidence that has been revealed to be materially inaccurate."
Id., at 590.
[n.3]
In Ford v. Wainwright, supra, the petitioner
had been convicted of murder and sentenced to death.
There was no suggestion that he was incompetent at the
time of his offense, at trial, or at sentencing, but subsequently he exhibited changes in behavior that raised
doubts about his sanity. This Court held that Florida was
required under the Eighth Amendment to provide an
additional hearing to determine whether Ford was men tally competent, and that he could not be executed if he
were incompetent. 477 U. S., at 410 (plurality opinion);
id., at 422-423 (Powell, J., concurring in part and concurring in the judgment). Both Johnson and Ford recognize
that capital defendants may be entitled to further proceedings because of an intervening development even though
they have been validly convicted and sentenced to death.

Respondent and the United States as amicus curiae
argue that the Eighth Amendment does not apply to
petitioner because he is challenging his guilt, not his
punishment. Brief for Respondent 21-23; Brief for United
States as Amicus Curiae 9-12. The majority attempts todistinguish Ford on that basis. Ante, at 14.
[n.4]
Such
reasoning, however, not only contradicts our decision in
Beck v. Alabama, 447 U.S. 625 (1980), but also fundamentally misconceives the nature of petitioner's argument.
Whether petitioner is viewed as challenging simply his
death sentence or also his continued detention, he still is
challenging the State's right to punish him. Respondent
and the United States would impose a clear line between
guilt and punishment, reasoning that every claim that
concerns guilt necessarily does not involve punishment.
Such a division is far too facile. What respondent and the
United States fail to recognize is that the legitimacy of
punishment is inextricably intertwined with guilt.

Beck makes this clear. In Beck, the petitioner was
convicted of the capital crime of robbery intentional
killing. Under Alabama law, however, the trial court was
prohibited from giving the jury the option of convicting
him of the lesser included offense of felony murder. We
held that precluding the instruction injected an impermissible element of uncertainty into the guilt phase of the
trial.

"To insure that the death penalty is indeed imposed
on the basis of `reason rather than caprice or emotion,' we have invalidated procedural rules that tended
to diminish the reliability of the sentencing determination. The same reasoning must apply to rules that
diminish the reliability of the guilt determination.
Thus, if the unavailability of a lesser included offenseinstruction enhances the risk of an unwarranted
conviction, [the State] is constitutionally prohibited
from withdrawing that option in a capital case." 447
U. S., at 638 (footnote omitted).

The decision in Beck establishes that, at least in capital
cases, the Eighth Amendment requires more than reliabil ity in sentencing. It also mandates a reliable determination of guilt. See also Spaziano v. Florida, 468 U. S., at
456.

The Court also suggests that allowing petitioner to raise
his claim of innocence would not serve society's interest
in the reliable imposition of the death penalty because it
might require a new trial that would be less accurate
than the first. Ante, at 12. This suggestion misses the
point entirely. The question is not whether a second trial
would be more reliable than the first but whether, in light
of new evidence, the result of the first trial is sufficiently
reliable for the State to carry out a death sentence.
Furthermore, it is far from clear that a State will seek to
retry the rare prisoner who prevails on a claim of actual
innocence. As explained in part III, infra, I believe a
prisoner must show not just that there was probably a
reasonable doubt about his guilt but that he is probably
actually innocent. I find it difficult to believe that any
State would chose to retry a person who meets this
standard.

I believe it contrary to any standard of decency to
execute someone who is actually innocent. Because the
Eighth Amendment applies to questions of guilt or innocence, Beck v. Alabama, 447 U. S., at 638, and to persons
upon whom a valid sentence of death has been imposed,
Johnson v. Mississippi, 486 U. S., at 590, I also believe
that petitioner may raise an Eighth Amendment challenge
to his punishment on the ground that he is actually
innocent.

Execution of the innocent is equally offensive to the Due
Process Clause of the Fourteenth Amendment. The
majority's discussion misinterprets petitioner's Fourteenth
Amendment claim as raising a procedural rather than a
substantive due process challenge.
[n.5]

"The Due Process Clause of the Fifth Amendment
provides that `No person shall . . . be deprived of life,
liberty, or property, without due process of law . . . .'
This Court has held that the Due Process Clause
protects individuals against two types of government
action. So called `substantive due process' prevents
the government from engaging in conduct that `shocks
the conscience,' Rochin v. California, 342 U.S. 165,
172 (1952), or interferes with rights `implicit in the
concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325-326 (1937). When government action
depriving a person of life, liberty, or property survives
substantive due process scrutiny, it must still be
implemented in a fair manner. Mathews v. Eldridge,
424 U.S. 319, 335 (1976). This requirement has
traditionally been referred to as `procedural' due
process." United States v. Salerno, 481 U.S. 739, 746
(1987).

Petitioner cites not Mathews v. Eldridge, 424 U.S. 319(1976), or Medina v. California, 505 U. S. ___ (1992), in
support of his due process claim, but Rochin. Brief for
Petitioner 32-33.

Just last Term, we had occasion to explain the role of
substantive due process in our constitutional scheme.
Quoting the second Justice Harlan, we said:

" `[T]he full scope of the liberty guaranteed by the Due
Process Clause cannot be found in or limited by the
precise terms of the specific guarantees elsewhere
provided in the Constitution. This "liberty" is not a
series of isolated points . . . . It is a rational contin uum which, broadly speaking, includes a freedom from
all substantial arbitrary impositions and purposeless
restraints . . . .' " Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U. S. ___, ___ (1992) (slip
op. 6), quoting Poe v. Ullman, 367 U.S. 497, 543
(1961) (Harlan, J., dissenting from dismissal on
jurisdictional grounds).

Petitioner's claim falls within our due process precedents. In Rochin, deputy sheriffs investigating narcotics
sales broke into Rochin's room and observed him put two
capsules in his mouth. The deputies attempted to remove
the capsules from his mouth and, having failed, took
Rochin to a hospital and had his stomach pumped. The
capsules were found to contain morphine. The Court held
that the deputies' conduct "shock[ed] the conscience" and
violated due process. 342 U. S., at 172. "Illegally breaking into the privacy of the petitioner, the struggle to open
his mouth and remove what was there, the forcible
extraction of his stomach's contents--this course of proceeding by agents of government to obtain evidence is
bound to offend even hardened sensibilities. They are
methods too close to the rack and the screw to permit of
constitutional differentiation." Ibid. The lethal injection
that petitioner faces as an allegedly innocent person is
certainly closer to the rack and the screw than thestomach pump condemned in Rochin. Execution of an
innocent person is the ultimate " `arbitrary impositio[n].' "
Planned Parenthood, 505 U. S., at ___ (slip op. 6). It is
an imposition from which one never recovers and for
which one can never be compensated. Thus, I also believe
that petitioner may raise a substantive due process
challenge to his punishment on the ground that he is
actually innocent.

Given my conclusion that it violates the Eighth and
Fourteenth Amendments to execute a person who is
actually innocent, I find no bar in Townsend v. Sain, 372 U.S. 293 (1963), to consideration of an actual innocence
claim. Newly discovered evidence of petitioner's innocence
does bear on the constitutionality of his execution. Of
course, it could be argued this is in some tension with
Townsend's statement, id., at 317, that "the existence
merely of newly discovered evidence relevant to the guilt
of a state prisoner is not a ground for relief on federal
habeas corpus." That statement, however, is no more
than distant dictum here, for we never had been asked
to consider whether the execution of an innocent person
violates the Constitution.

The majority's discussion of petitioner's constitutional
claims is even more perverse when viewed in the light of
this Court's recent habeas jurisprudence. Beginning with
a trio of decisions in 1986, this Court shifted the focus of
federal habeas review of successive, abusive, or defaulted
claims away from the preservation of constitutional rights
to a fact based inquiry into the habeas petitioner's guilt
or innocence. See Kuhlmann v. Wilson, 477 U.S. 436,
454 (plurality opinion); Murray v. Carrier, 477 U.S. 478,
496 Smith v. Murray, 477 U.S. 527, 537; see alsoMcCleskey v. Zant, 499 U. S. ___, ___ (1991) (slip op.
24-25). The Court sought to strike a balance between the
State's interest in the finality of its criminal judgments
and the prisoner's interest in access to a forum to test the
basic justice of his sentence. Kuhlmann v. Wilson, 477
U. S., at 452. In striking this balance, the Court adopted
the view of Judge Friendly that there should be an
exception to the concept of finality when a prisoner can
make a colorable claim of actual innocence. Friendly, Is
Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 U. Chi. L. Rev. 142, 160 (1970).

Justice Powell, writing for the plurality in Wilson,
explained the reason for focusing on innocence:

"The prisoner may have a vital interest in having
a second chance to test the fundamental justice of his
incarceration. Even where, as here, the many judges
who have reviewed the prisoner's claims in several
proceedings provided by the State and on his first
petition for federal habeas corpus have determined
that his trial was free from constitutional error, a
prisoner retains a powerful and legitimate interest in
obtaining his release from custody if he is innocent
of the charge for which he was incarcerated. That
interest does not extend, however, to prisoners whose
guilt is conceded or plain." 477 U. S., at 452.

In other words, even a prisoner who appears to have had
a constitutionally perfect trial, "retains a powerful and
legitimate interest in obtaining his release from custody
if he is innocent of the charge for which he was incarcerated." It is obvious that this reasoning extends beyond
the context of successive, abusive, or defaulted claims to
substantive claims of actual innocence. Indeed, Judge
Friendly recognized that substantive claims of actual
innocence should be cognizable on federal habeas. 38 U.
Chi. L. Rev., at 159-160, and n. 87.

Having adopted an "actual innocence" requirement forreview of abusive, successive, or defaulted claims, however,
the majority would now take the position that "the claim
of `actual innocence' is not itself a constitutional claim, but
instead a gateway through which a habeas petitioner must
pass to have his otherwise barred constitutional claim
considered on the merits." Ante, at 13. In other words,
having held that a prisoner who is incarcerated in violation of the Constitution must show he is actually innocent
to obtain relief, the majority would now hold that a
prisoner who is actually innocent must show a constitutional violation to obtain relief. The only principle that
would appear to reconcile these two positions is the
principle that habeas relief should be denied whenever
possible.

The Eighth and Fourteenth Amendments, of course, are
binding on the States, and one would normally expect the
States to adopt procedures to consider claims of actual
innocence based on newly discovered evidence. See Ford
v. Wainwright, 477 U. S., at 411-417 (plurality opinion)
(minimum requirements for state court proceeding to
determine competency to be executed). The majority's
disposition of this case, however, leaves the States uncertain of their constitutional obligations.

Whatever procedures a State might adopt to hear actual
innocence claims, one thing is certain: The possibility of
executive clemency is not sufficient to satisfy the requirements of the Eighth and Fourteenth Amendments. The
majority correctly points out: "A pardon is an act of
grace." Ante, at 22. The vindication of rights guaranteed
by the Constitution has never been made to turn on the
unreviewable discretion of an executive official or administrative tribunal. Indeed, in Ford v. Wainwright, weexplicitly rejected the argument that executive clemency
was adequate to vindicate the Eighth Amendment right
not to be executed if one is insane. 477 U. S., at 416.
The possibility of executive clemency "exists in every case
in which a defendant challenges his sentence under the
Eighth Amendment. Recognition of such a bare possibility
would make judicial review under the Eighth Amendment
meaningless." Solem v. Helm, 463 U.S. 277, 303 (1983).

"The government of the United States has been emphatically termed a government of laws, and not of men. It
will certainly cease to deserve this high appellation, if the
laws furnish no remedy for the violation of a vested legal
right." Marbury v. Madison, 1 Cranch 137, 163 (1803).
If the exercise of a legal right turns on "an act of grace,"
then we no longer live under a government of laws. "The
very purpose of a Bill of Rights was to withdraw certain
subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials
and to establish them as legal principles to be applied by
the courts." West Virginia State Board of Education v.
Barnette, 319 U.S. 624, 638 (1943). It is understandable,
therefore, that the majority does not say that the vindication of petitioner's constitutional rights may be left to
executive clemency.

Like other constitutional claims, Eighth and Fourteenth
Amendment claims of actual innocence advanced on behalf
of a state prisoner can and should be heard in state court.
If a State provides a judicial procedure for raising such
claims, the prisoner may be required to exhaust that
procedure before taking his claim of actual innocence to
federal court. See 28 U.S.C. 2254(b) and (c). Furthermore, state court determinations of factual issues relating
to the claim would be entitled to a presumption of correctness in any subsequent federal habeas proceeding. See
28 U.S.C. § 2254(d).

Texas provides no judicial procedure for hearing petitioner's claim of actual innocence and his habeas petition
was properly filed in district court under 28 U.S.C. § 2254. The district court is entitled to dismiss the
petition summarily only if "it plainly appears from the
face of the petition and any exhibits annexed to it that
the petitioner is not entitled to relief." 28 U.S.C. § 2254
Rule 4. If, as is the case here, the petition raises factual
questions and the State has failed to provide a full and
fair hearing, the district court is required to hold an
evidentiary hearing. Townsend v. Sain, 372 U. S., at 313.

Because the present federal petition is petitioner's
second, he must either show cause for and prejudice from
failing to raise the claim in his first petition or show that
he falls within the "actual innocence" exception to the
cause and prejudice requirement. McCleskey v. Zant, 499
U. S., at ___ (slip op. 25-26). If petitioner can show that
he is entitled to relief on the merits of his actual innocence claim, however, he certainly can show that he falls
within the "actual innocence" exception to the cause and
prejudice requirement and McCleskey would not bar relief.

The question that remains is what showing should be
required to obtain relief on the merits of an Eighth or
Fourteenth Amendment claim of actual innocence. I agree
with the majority that "in state criminal proceedings the
trial is the paramount event for determining the guilt or
innocence of the defendant." Ante, at 25. I also think
that "a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a
defendant unconstitutional." Ante, at 26. The question
is what "a truly persuasive demonstration" entails, a question the majority's disposition of this case leaves open.

In articulating the "actual innocence" exception in our
habeas jurisprudence, this Court has adopted a standard
requiring the petitioner to show a " `fair probability that,in light of all the evidence . . . , the trier of facts would
have entertained a reasonable doubt of his guilt.' "
Kuhlmann v. Wilson, 477 U. S., at 455, n. 17. In other
words, the habeas petitioner must show that there probably would be a reasonable doubt. See also Murray v.
Carrier, 477 U. S., at 496 (exception applies when a
constitutional violation has "probably resulted" in a
mistaken conviction); McCleskey v. Zant, 499 U.S., at ___
(slip op. 25) (exception applies when a constitutional
violation "probably has caused" a mistaken conviction).
[n.6]

I think the standard for relief on the merits of an
actual innocence claim must be higher than the threshold
standard for merely reaching that claim or any other
claim that has been procedurally defaulted or is successive
or abusive. I would hold that, to obtain relief on a claim
of actual innocence, the petitioner must show that he
probably is innocent. This standard is supported by
several considerations. First, new evidence of innocence
may be discovered long after the defendant's conviction.
Given the passage of time, it may be difficult for the
State to retry a defendant who obtains relief from hisconviction or sentence on an actual innocence claim. The
actual innocence proceeding thus may constitute the final
word on whether the defendant may be punished. In
light of this fact, an otherwise constitutionally valid
conviction or sentence should not be set aside lightly.
Second, conviction after a constitutionally adequate trial
strips the defendant of the presumption of innocence. The
government bears the burden of proving the defendant's
guilt beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 315 (1979); In re Winship, 397 U.S. 358, 364
(1970), but once the government has done so, the burden
of proving innocence must shift to the convicted defendant.
The actual innocence inquiry is therefore distinguishable
from review for sufficiency of the evidence, where the
question is not whether the defendant is innocent but
whether the government has met its constitutional burden
of proving the defendant's guilt beyond a reasonable
doubt. When a defendant seeks to challenge the determination of guilt after he has been validly convicted and
sentenced, it is fair to place on him the burden of proving
his innocence, not just raising doubt about his guilt.

In considering whether a prisoner is entitled to relief
on an actual innocence claim, a court should take all the
evidence into account, giving due regard to its reliability.
See Sawyer v. Whitley, 505 U. S., at ___, n. 5 (1992) (slip
op. 5, n. 5); Kuhlmann v. Wilson, 477 U. S., at 455, n. 17;
Friendly, 38 U. Chi. L. Rev., at 160. Because placing the
burden on the prisoner to prove innocence creates a
presumption that the conviction is valid, it is not necessary or appropriate to make further presumptions about
the reliability of newly discovered evidence generally.
Rather, the court charged with deciding such a claim
should make a case by case determination about the
reliability of the newly discovered evidence under the
circumstances. The court then should weigh the evidence
in favor of the prisoner against the evidence of his guilt.
Obviously, the stronger the evidence of the prisoner'sguilt, the more persuasive the newly discovered evidence
of innocence must be. A prisoner raising an actual innocence claim in a federal habeas petition is not entitled
to discovery as a matter of right. Harris v. Nelson, 394 U.S. 286, 295 (1969); 28 U.S.C. § 2254 Rule 6. The
district court retains discretion to order discovery, how ever, when it would help the court make a reliable
determination with respect to the prisoner's claim. Harris
v. Nelson, 395 U. S., at 299-300; see Advisory Committee
Note to 28 U.S.C. § 2254 Rule 6.

It should be clear that the standard I would adopt
would not convert the federal courts into " `forums in
which to relitigate state trials.' " Ante, at 9, quoting
Barefoot v. Estelle, 463 U.S. 880, 887 (1983). It would
not "require the habeas court to hear testimony from the
witnesses who testified at the trial," ante, at 11, though,
if the petition warrants a hearing, it may require the
habeas court to hear the testimony of "those who made
the statements in the affidavits which petitioner has
presented." Ibid. I believe that if a prisoner can show
that he is probably actually innocent, in light of all the
evidence, then he has made "a truly persuasive demonstration," ante, at 26, and his execution would violate the
Constitution. I would so hold.

In this case, the District Court determined that
petitioner's newly discovered evidence warranted further
consideration. Because the District Court doubted its own
authority to consider the new evidence, it thought that
petitioner's claim of actual innocence should be brought
in state court, see App. 38-39, but it clearly did not think
that petitioner's evidence was so insubstantial that it
could be dismissed without any hearing at all.
[n.7]
I wouldreverse the order of the Court of Appeals and remand the
case to the District Court to consider whether petitioner
has shown, in light of all the evidence, that he is probably
actually innocent.

I think it is unwise for this Court to step into the shoes
of a district court and rule on this petition in the first
instance. If this Court wishes to act as a district court,
however, it must also be bound by the rules that govern
consideration of habeas petitions in district court. A
district court may summarily dismiss a habeas petition
only if "it plainly appears from the face of the petition
and any exhibits annexed to it that the petitioner is not
entitled to relief." 28 U.S.C. § 2254 Rule 4. In one of the
affidavits, Hector Villarreal, a licensed attorney and
former state court judge, swears under penalty of perjury
that his client Raul Herrera confessed that he, and not
petitioner, committed the murders. No matter what the
majority may think of the inconsistencies in the affidavits
or the strength of the evidence presented at trial, this
affidavit alone is sufficient to raise factual questions
concerning petitioner's innocence that cannot be resolved
simply by examining the affidavits and the petition.

I do not understand why the majority so severely faults
petitioner for relying only on affidavits. Ante, at 26. It
is common to rely on affidavits at the preliminary consideration stage of a habeas proceeding. The opportunity for
cross examination and credibility determinations comes at
the hearing, assuming that the petitioner is entitled to
one. It makes no sense for this Court to impugn the
reliability of petitioner's evidence on the ground that its
credibility has not been tested when the reason its credibility has not been tested is that petitioner's habeas
proceeding has been truncated by the Court of Appeals
and now by this Court. In its haste to deny petitioner
relief, the majority seems to confuse the question whether
the petition may be dismissed summarily with the question whether petitioner is entitled to relief on the merits
of his claim.

I have voiced disappointment over this Court's obvious
eagerness to do away with any restriction on the States'
power to execute whomever and however they please. See
Coleman v. Thompson, 501 U. S. ___, ___ (1991) (slip op.
1) (dissenting opinion). See also Coleman v. Thompson,
504 U. S. ___ (1992) (dissent from denial of stay of
execution). I have also expressed doubts about whether,
in the absence of such restrictions, capital punishment
remains constitutional at all. Sawyer v. Whitley, 505
U. S., at ___ (slip op. 8-11) (opinion concurring in the
judgment). Of one thing, however, I am certain. Just as
an execution without adequate safeguards is unacceptable,
so too is an execution when the condemned prisoner can
prove that he is innocent. The execution of a person who
can show that he is innocent comes perilously close to
simple murder.

Notes

1
One impressive study has concluded that 23 innocent people have been
executed in the United States in this century, including one as recently
as 1984. Bedau & Radelet, Miscarriages of Justice in Potentially Capital
Cases, 40 Stan. L. Rev. 21, 36, 173-179 (1987); M. Radelet, H. Bedau, &
C. Putnam, In Spite of Innocence 282-356 (1992). The majority cites this
study to show that clemency has been exercised frequently in capital
cases when showings of actual innocence have been made. See ante, at
24. But the study also shows that requests for clemency by persons the
authors believe were innocent have been refused. See, e. g., Bedau &
Radelet, 40 Stan. L. Rev., at 91 (discussing James Adams who was
executed in Florida on May 10, 1984); M. Radelet, H. Bedau, & C.
Putnam, In Spite of Innocence, at 5-10 (same).

2
It also may violate the Eighth Amendment to imprison someone who
is actually innocent. See Robinson v. California, 370 U.S. 660, 667
(1962) ("Even one day in prison would be a cruel and unusual punishment
for the `crime' of having a common cold"). On the other hand, this Court
has noted that " `death is a different kind of punishment from any other
which may be imposed in this country. . . . From the point of view of the
defendant, it is different in both its severity and its finality.' " Beck v.
Alabama, 447 U.S. 625, 637 (1980), quoting Gardner v. Florida, 430 U.S. 349, 357 (1977) (opinion of Stevens, J.). We are not asked to decide in
this case whether petitioner's continued imprisonment would violate the
Constitution if he actually is innocent, see Brief for Petitioner 39, n. 52;
Tr. of Oral Arg. 3-5, and I do not address that question.

3
The majority attempts to distinguish Johnson on the ground that
Mississippi previously had considered claims like Johnson's by writ of
error coram nobis. Ante, at 15. We considered Mississippi's past practice
in entertaining such claims, however, to determine not whether an Eighth
Amendment violation had occurred but whether there was an independent and adequate state ground preventing us from reaching the merits
of Johnson's claim. See 486 U. S., at 587-589. Respondent does not
argue that there is any independent and adequate state ground that
would prevent us from reaching the merits in this case.

4
The Court also suggests that Ford is distinguishable because "unlike
the question of guilt or innocence . . . the issue of sanity is properly
considered in proximity to the execution." Ante, at 14-15. Like insanity,
however, newly discovered evidence of innocence may not appear until
long after the conviction and sentence. In Johnson, the New York Court
of Appeals decision that required reconsideration of Johnson's sentence
came five years after he had been sentenced to death. 486 U. S., at
580-582.

5
The majority's explanation for its failure to address petitioner's
substantive due process argument is fatuous. The majority would deny
petitioner the opportunity to bring a substantive due process claim of
actual innocence because a jury has previously found that he is not
actually innocent. See ante, at 16, n. 6. To borrow a phrase, this "puts
the cart before the horse." Ibid.

Even under the procedural due process framework of Medina v.
California, 505 U.S. ___ (1992), the majority's analysis is incomplete, for
it fails to consider "whether the rule transgresses any recognized principle
of `fundamental fairness' in operation." Id., at ___ (slip op. 10), quoting
Dowling v. United States, 493 U.S. 342, 352 (1990).

6
Last Term in Sawyer v. Whitley, 505 U. S. ___ (1992), this Court
adopted a different standard for determining whether a federal habeas
petitioner bringing a successive, abusive, or defaulted claim has shown "actual innocence" of the death penalty. Under Sawyer, the petitioner
must "show by clear and convincing evidence that but for a constitutional
error, no reasonable juror would have found the petitioner eligible for the
death penalty under applicable state law." Id., at ___ (slip op. 1). That
standard would be inappropriate here. First, it requires a showing of
constitutional error in the trial process, which, for reasons already
explained, is inappropriate when petitioner makes a substantive claim
of actual innocence. Second, it draws its "no reasonable juror" standard
from Jackson v. Virginia's standard for sufficiency of the evidence. As
I explain below, however, sufficiency of the evidence review differs in
important ways from the question of actual innocence. Third, the Court
developed this standard for prisoners who are concededly guilty of capital
crimes. Here, petitioner claims that he is actually innocent of the capital
crime.

7
Justice O'Connor reads too much into the fact that the District Courtfailed to pass on the sufficiency of the affidavits, did not suggest that it
wished to hold an evidentiary hearing, and did not retain jurisdiction
after the state court action was filed. Ante, at 6-7. The explanation for
each of these actions, as Justice O'Connor notes, is that the District
Court believed that it could offer no relief in any event. Ante, at 6.